Federal Judge May Lift Stay on Injunction Against NSA Phone Program

A federal judge who previously ruled the National Security Agency’s mass telephone surveillance program likely unconstitutional has reopened the possibility of issuing an injunction against the program ahead of its November expiration.

U.S. District Judge Richard Leon said Wednesday he may issue a preliminary injunction against the program if given evidence the NSA surveilled phone records from a service provider named in a leaked document.

Wednesday’s hearing was the latest action in a case brought against the government by Larry Klayman, an anti-surveillance lawyer and founder of Judicial Watch, a conservative watchdog group.

In December 2013 Leon described NSA’s bulk metadata collection program of virtually all Americans’ landline phone records as “almost-Orwellian technology,” and ruled the program likely unconstitutional on Fourth Amendment grounds. Leon issued a preliminary injunction to halt the collection of Klayman and his client’s data, but stayed the injunction to give the government time to mount an appeal over national security concerns.

“I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval,” Leon said in 2013. “Surely, such a program infringes on ‘that degree of privacy’ that the founders enshrined in the Fourth Amendment.”

Leon added the 215 Program, which at the time was legally underpinned by Section 215 of the Patriot Act, was “unlike anything that could have been conceived in 1979” and was “at best, the stuff of science fiction.”

The U.S. Court of Appeals for the District of Columbia overruled Leon’s injunction and sent the case back down to the district judge in August, telling Klayman there’s no way to prove the dragnet telephone surveillance program affected Verizon Wireless customers, or Klayman and his co-plaintiff.

Earlier this month Leon told Klayman he was prepared to lift his stay, and suggested Klayman add a co-plaintiff to the case — a customer of Verizon Business Network Services, which was named in a leaked document the government has acknowledged as valid.

“To this court, it is beyond even common sense that Verizon Wireless was involved,” Leon, an appointee of former President George W. Bush, said earlier this month.

Earlier this summer the Second U.S. Circuit Court of Appeals ruled Section 215 of the Patriot Act does not permit the bulk collection of Americans’ telephone records, and ruled the program unconstitutional. Shortly after, a brawl in the Senate led to the passage of the U.S.A. Freedom Act, which scheduled a shut down of the program in November.

In its place the government will adhere to a new program in which telephone companies themselves will house the data instead, forcing agencies like NSA to obtain a warrant to search for specific and more-narrowly defined data.

Earlier in September Leon warned Justice Department attorneys in the room not to drag their feet in submitting motions, because he doesn’t intend to let the government run out the clock until November, as he and Klayman intimated DOJ had done for the last two years.

Klayman and government attornies will meet again in Leon’s courtroom on Oct. 8 for oral arguments.